An unlawful non-citizen is being detained or (white) citizens are saving the nation from (non-white) non-citizens

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Publication details

Bird, GM 2005, 'An unlawful non-citizen is being detained or (white) citizens are saving the nation from (non-white) non-citizens', University of Western Sydney Law Review, vol. 9, pp. 87-110.

Peer Reviewed



The title of this paper is prompted by Gayatri Spivak’s construction of the sentence ‘White men are saving brown women from brown men.’ Spivak describes her ‘insistence on imperialist subject-production as the occasion for this sentence...’ In this she confesses she ‘discloses a politics’.[2] In choosing this title I too am revealing a politics and will speak of agency, responsibility and subject production. In this paper I draw on theorists such as Derrida, Levinas, Agamben, Lacan and Kristeva and explore the detention of ‘unlawful non citizens’ in Australia. I look at the nation’s resistance to difference. Australia’s legal foundations are rickety[3] and there is, I argue, a horror in the collective unconscious of the original inhabitants and those others who cross the borders without invitation. There is a resort to distraction and denial and an evading of responsibility on a large scale. I demonstrate this by analysis of a 2004 High Court judgment, the Al-Kateb case.[4] Here the majority of the judges find Ahmed Ali Al-Kateb ‘an unlawful non-citizen being held in detention’. The ‘law’ or the ‘executive’ has spoken; the judges and ordinary citizens are innocent.[5] The ‘state of exception’, indefinite detention without trial, becomes unexceptional. The case raises questions of the limit of the doctrine of the rule of law and of the nature of justice.

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